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The Gandhi Faiz-e-am Degree College Vs. the University of Agra and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1177 of 1966
Judge
Reported inAIR1968All188
ActsConstitution of India - Articles 12, 30(1) and 367
AppellantThe Gandhi Faiz-e-am Degree College
RespondentThe University of Agra and anr.
Appellant AdvocateJ. Swarrop, ;S.C. Khare and ;K.N. Tripathi, Advs.
Respondent AdvocateP.N. Duda, Adv.
DispositionPetition dismissed
Excerpt:
.....of state. - - classes, it does appear, is substantially based on the fact that the managing committee of the petitioner did not amend its constitution as promised and this failed to comply with the conditions of statute 14-a. theseconcessions must have been made to themfor good and valid reasons. 'without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under article 30(1) cannot be effectively exercised. the right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational..........for carrying on its management and administration:(a) general council. (b) governing body. (c) managing committee. 4. the further rules of the constitution indicate that it is the members of the muslim community who alone could be the members of the above said three bodies. the general council is the supreme body.the governing body is elected by the general council and its functions are in the nature of an executive body. but it also elects a smaller body known as the managing committee who is to exercise the powers vested in the governing body. it is the managing committee which is concerned with the day to day administration of the petitioner. the rules do not envisage any non muslim as member of any of the above said bodies and thus a non muslim cannot be an office bearer as.....
Judgment:

K.B. Asthana, J.

1. By this petition under Article 226 of the Constitution the petitioner known as the Gandhi Faiz-e Am Degree College, Shahjahanpur, a society registered under the Societies Registration Act, questions the validity of the conditions put on it by the university of Agra for permitting and recognising the opening of B. T. and LL.B classes in the College.

2. It is claimed that the petitioner is an institution owned, managed and run by the Muslim minority community which is in effective administration and control of it and that the conditions which the Agra University has laid down interfere with its fundamental rights conferred by Article 30 of the Constitution.

3. The petitioner according to its Constitution, a copy of which is annexure 'A' to the petition, has the following bodies for carrying on its management and administration:

(a) General Council.

(b) Governing Body.

(c) Managing Committee.

4. The further rules of the Constitution indicate that it is the members of the Muslim community who alone could be the members of the above said three bodies. The General Council is the supreme body.

The Governing Body is elected by the General Council and its functions are in the nature of an Executive Body. But it also elects a smaller body known as the Managing Committee who is to exercise the powers vested in the Governing Body. It is the Managing Committee which is concerned with the day to day administration of the petitioner. The Rules do not envisage any non Muslim as member of any of the above said Bodies and thus a non Muslim cannot be an office bearer as provided in the said Rules. The petitioner is, therefore, managed entirely by a body of persons drawn from the Muslim community. It is the admitted case of the petitioner that it was affiliated for some other degrees to the Agra University long before it applied for its affiliation for B. T. and LL.B. classes. It cannot be disputed, therefore, that the petitioner had already complied with the conditions of statute 14 when it agreed to affiliate itself with the Agra University for courses other than B.T. and LL.B. In 1963 the Agra University adopted a statute 14-A and added some more conditions for affiliation requiring the affiliated Colleges to have on their Governing Bodies, which term included the Managing Committees also, the Principal of the College and at least a representative of the teachers of the College to be appointed by rotation in order of seniority determined by length of service in the College who was to hold office for a certain fixed term.

It appears that by a letter dated 12th August, 1964 the Principal of the petitioner applied to the Registrar, Agra University, for its affiliation for teaching of B. T. and LL.B. course and also for its affiliation in certain more new subjects for Bachelor of Arts degrees. While the University permitted the petitioner to open fresh subjects for Bachelor of Arts degrees it did not readily grant affiliation for the new courses i.e., for B.T- and LL. B. degrees. The petitioner, however, persisted in its request for its affiliation for B.T. and LL.B. The University authorities, however, asked the petitioner to comply with the conditions prescribed in the newly framed statute 14-A. The petitioner thereupon appears to have taken the stand that the petitioner was an institution run and managed by a minority community but the University authorities though recognising the minority nature of the petitioner wrongly persisted that conditions of statute 14-A be complied with before further affiliation for any new degree could be granted. At the same time, however, by a communication dated 22nd November. 1965 the President of the petitioner wrote to the Deputy Registrar, Agra University signifying the willingness of the Managing Committee of the petitioner to make the inclusion of the Principal and one Head of Department by rotation obligatory in the Governing Body as proposed and undertook to amend the Constitution suitably to Rive the proposal a practical shape within three months after receiving the reply from the University. A true copy of this letter is annexure 'G' to the counter-affidavit sworn by Sri Badri Prasad Jain, Private Secretary to the Vice Chancellor of the Agra University.

Then an enquiry was made by the Deputy Registrar of the University from the President of the petitioner whether the necessary amendments in the Constitution of the Managing Committee had been made which was followed by another letter in December, 1965 from the Deputy Registrar to the President of the petitioner saving that unless the amendments were made recognition or affiliation for the new classes would not be possible. Finally the petitioner was informed by the University authorities by a communication dated 28th December, 1965 that affiliation for B.T. and LL.B. classes was not to be granted as the Vice Chancellor of the University had refused to entertain the application of the petitioner.

5. In its petition before this Court while the petitioner has disclosed all the material facts it did not disclose that by a communication dated 22nd November, 1965 (annexure 'G' to the counter affidavit of Sri B. P Jain referred to above) its President had agreed to comply with the conditions of statute 14-A and had undertaken to amend the Constitution accordingly The refusal of the Agra University to grant affiliation to the petitioner for B.T. and LL.B. Classes, it does appear, is substantially based on the fact that the Managing Committee of the petitioner did not amend its Constitution as promised and this failed to comply with the conditions of statute 14-A. The petitioner had questioned the validity of this action of the University authorities on the ground that by insisting upon the inclusion of the Principal and a representative of the teachers by rotation on the Managing Committee the University of Agra has violated the guarantee conferred upon the petitioner by Article 30 of the Constitution vesting a fundamental right on the petitioner to establish and administer an educational institution of its choice as a minority. In the counter-affidavit of Sri B. P. Jain, referred by above in paragraph 37 it has been averred as follows:

'That the conditions imposed in Statute 14-A were introduced in the academic and the public interest and would not destroy or tend to destroy the existing composition or character of the institution.' In paragraph 38 it is averred: 'That the Principal of college is a Muslim and has always been a Muslim and out of the other Departments of English. Hindi, Urdu, Economics and 10 others only 4 Heads or about of the Departments are non-Muslims and accordingly in 18 years' rotation the Non-Muslims ex-officio members on the Committee will be only for 4 years, i.e. once in 5 years.'

6. In the rejoinder-affidavit on behalf of the petitioner the factual parts of the allegations in the above said paragraphs of the counter-affidavit have not been controverted.

7. The main question for consideration in this petition is whether the provisions of statute 14-A of the Statutes of the Agra University laying down the condition that the Principal of the College and representative of the teachers of the College by rotation shall be members of the Managing Committee of the College make such an invasion or inroad in the fundamental right of the minority which administers and manages the petitioner so as to be destructive of the power of administration and thus violating the provisions of Article 30(1) of the Constitution. It is not disputed that it is the Muslim community which has endowed, established and administers the college. Since the allegations in paragraph 38 of the counter-affidavit sworn by Sri B. P. Jain have not been controverted it is clear that once in a while there is some chance of a non-Muslim becoming a member of the Managing Committee of the College. It has then to be judged whether if once in 18 years for a period of four years there is some possibility of a non-Muslim becoming a Member of the Managing Committee, does it amount to such an invasion of the right of the minority that runs the institution as to destroy its power of administration guaranteed by Article 30(1) of the Constitution?

8. Sri S. C. Khare, learned counsel appearing for the petitioner contended that what Article 30 of the Constitution guarantees is the essence of the administration to the minority of an institution of its choice established by it. Learned counsel submitted that the Managing Committee under the rules of the society is the minority and it has the absolute right under Sub-article (1) of Article 30 of the Constitution to carry on the administration. The contention is that the moment, even if for a short or temporary period, a member of a community other that the minority is thrown into the Managing Committee the essence of the power of administration which is guaranteed is destroyed. Learned counsel relied upon certain observations of the Supreme Court in the case of In re Kerala Educational Bill, 1957, AIR 1958 S.C. 956 and in the case of Sidhrajbhai Sabbai v. State of Gujarat, (AIR 1963 S.C. 540) In the above two cases the Supreme Court had the occasion to consider the validity of laws enacted by the respective States effecting the carrying on of administration of Christian institutions run entirely by bodies manned by Christians and the learned judges came to the conclusion that in both the cases the measures enacted in the impugned laws went much beyond the regulatory measures permissible under the constitution and destroyed the fundamental rightof the minority to administer institutions of their choice.

The law laid down by the Supreme Court in the above said two cases, as I understand, is that the guarantee under Sub-article (1) of Article 30 of the Constitution is not absolute in the sense that the State has absolutely no power to lay down regulatory measures in the interest of excellence and efficiency of education. It is implicit in the decisions of the Supreme Court that the minority cannot claim absolute immunity from the action of the State in regard to establish and administer educational institutions of its own choice In every case it has to be found out in the facts and circumstances and the conditions prevailing whether the action of the State or the law of the State makes such an inroad in the right of the minority to establish and administer institution so as to destroy the power of administration by it. To my mind what is meant by 'destroying the power of administration' is annihilating it or wiping it out and any action of the State or its law which merely nibbles at it leaving the essence of power substantially unaffected cannot be said to be violative of the right guaranteed to the minority by Article 30(1) of the Constitution.

However, Sri Khare pointed out the right to the minority conferred under Article 30(1) is to have the administration of its choice and if that is in any way affected by any law or action of the State there will be infringement of the guarantee and it would not matter that the infringement is such that the effective administration still remains in the hands of the minority. The submission was that though in the Managing Committee of the College majority still remains that of the minority community and their voice would always be effective as regards the affairs of the management yet the very fact that along with them would be seated a member of the non-Muslim community destroys the guarantee enshrined under Sub-article (1) of Article 30 of the Constitution. This is how I understand Mr. Khare's argument. Of course in the two cases cited by Sri Khare no such proposition seems to have been discussed but Sri Khare strenuously contended that this conclusion directly flowed from the language of Article 30(1) of the Constitution and from the ratio of the decisions of the Supreme Court in the said two cases. Learned counsel cited observations of Shah, J., in the case of AIR 1963 S.C. 540 (supra) contained in paragraph 15 at page 547 of the Report which are as follows:

'The right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or National interest, though not in its interest as an educational institution the right guaranteed by Article 30(1) will be but a 'teasing illusion', a promise of unreality. '

9. Learned counsel contended that the right, of the minority to have for its educational institution a managing committee consisting of the members of its choice to administer the same is guaranteed and the guarantee of Article 30 protects the minority from being forced to allow a member of the other community to take part in the administration. It is in this sense, learned counsel contended, that the Supreme Court observed that though a regulative measure may retain the formal character of the minority institution yet if it destroys the power of administration it cannot stand the test of that guarantee. In this connection learned counsel also drew my attention to the following observations of S. R. Das, C. J., in the case of AIR 1958 S.C 956 (supra) at p 986 :

''There can be no manner of doubt thatour Constitution has guaranteed certain cherished rights of the minorities concerningtheir language, culture and religion. Theseconcessions must have been made to themfor good and valid reasons. So long asthe Constitution stands as it is and is notaltered, it is, we conceive, the duty of thisCourt to uphold the fundamental rights andthereby honour our sacred obligation to theminority communities who are of our own.'The following observations of the SupremeCourt at page 985 were also cited: 'Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the education institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1).'

10. The question thus reduces itself to this whether the provisions of Statute 14-A of the Agra University destroyed the power of administration as explained by Shah. J., in the case of Sidhrajbhai. AIR 1963 S.C. 540 (supra) or it brought about the surrender of the petitioner's constitutional right of administration of its choice as explained by S. R. Das, C.J., in AIR 1958 S.C. 956? It would be noticed that in both these cases the Supreme Court has held that the constitutional right to administer an educational institution of its choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institution to be aided and that it was open to the State by legislation or by executive direction to impose reasonable regulations. Shah, J., in the case of Sidhrajbhai, AIR 1963 SC 540 (supra) went to the extent of observing as follows in paragraph 15 at page 547 of the Report:

''Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test--the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.'

11. Sri P. N. Duda appearing for the University contended that the conditions imposed by statute 14-A of the Agra University and the insistence by the Vice Chancellor of the University calling upon the Managing Committee of the petitioner to amend its Constitution so as to bring it in conformity with that statute were reasonable and regulated the educational character of the institution and were conducive to make the institution an effective vehicle of education for the minority community or other persons who resort to it. Sri Duda submitted that the appointment of the Principal on the Managing Committee and the representation of teachers on that Committee in an affiliated College insisted upon by statute 14-A aimed at affording protection to them as regards their tenure of employment, pay and emoluments and also otherwise regulating the education in the College. He submitted that all this was with a view to achieve excellence in the educational standard. Learned counsel further submitted that once any measure which is regulative in nature passed the dual test as laid down by Shah, J. in the case of Sidhraibhai. AIR 1963 SC 540 (supra) its validity must be upheld and it would be futile to argue that it violated the fundamental right of the minority.

Sri Duda controverted the extreme argument made by Sri S. C. Khare, for the petitioner that merely the association of a non-Muslim with the Managing Committee of the petitioner would destroy the guarantee of the right of administration by the minority inasmuch as, according to Sri Duda's submission, the Supreme Court had laid down the test as to what kind of regulative measures can be justified. Indeed Sri Khare's argument involved that any provision of law or the executive direction imposing on the Managing Committee a non-Muslim member is not regulatory in nature but will tend to destroy the right of administration by the minority. I am not prepared to accept such an extreme argument. In my judgment un-less it were shown that the power of the minority to administer the institution of its choice was destroyed i.e., wiped off by arbitrary measures in the guise of regulation, the guarantee under Article 30(1) would not be violated. No such case has been made out before me. Indeed at one stage as the narration of facts given above show the President of the Managing Committee of the petitioner himself did not think that the inclusion of the Principal of the College and the representative of teachers in the General Body of the College would be so harmful or baneful to the running of the institution as would destroy the power of administration of the institution of its choice by the minority community conferred by Article 30 of the Constitution. The President had agreed to accept the terms of the University imposed by statute 14-A and had undertaken to amend the Constitution.

However, learned counsel for the petitioner tried to explain that what the President of the Managing Committee of the petitioner had agreed to do was to amend the Constitution so as to permit the Principal and the representative of the teachers to sit on the General Body and not on the Managing Committee, In so far as I have seen the rules of the petitioner I do not find that the General Body as defined in those rules has no powers in regard to the administration of the petitioner. The duties of the General Body have been laid down under the rules and there is a rule for electing and conferring administrative powers by the General Body on the Managing Committee which becomes its delegate. Moreover statute 14-A itself defines that General Body includes the Managing Committee. In terms of that statute the General Body and the Managing Committee are synonymous. Nothing, therefore, turns upon the quibbling argument which has been introduced at the Bar that the President only agreed for the amendment of the rules in respect of the General Body and not in respect of the Managing Committee. I do not think that by not disclosing the fact that the President of the Managing Committee of the petitioner had agreed to abide by the terms and conditions of statute 14-A and had undertaken to amend the rules, the petitioner can be held guilty of suppression of material facts. I do not agree with Sri Duda, learned counsel for the University, that the petition be dismissed on this ground alone. To my mind no material advantage was gained by the petitioner in not disclosing one of the incidents in the course of the correspondence between it and the University.

12. Sri Duda also quoted from Encyclopaedia of the Social Sciences, Volumes 5-6 on the subject of Education in support of his submission that it has always been the trend so far as sectarian institutions were concerned to put some conditions upon them for granting them affiliation and one of such conditions with a view to exert some measure of control was by prescribing standards, by requiring the provision of a limited number of free scholarships and by providing for non-denominational representation on the Board of Management. At page 421 the sectarain education has been described as denoting general education conducted under the auspices of minority religious groups or sets and then at page 422 the following passage occurs:

'The affiliation type of relationship is represented by England with its system of 'provided' and 'non-provided' schools, in which schools provided by the State and those established and managed by churches or other associations are amalgamated into a single system. The State finances sectarian education in this system to a considerable extent and exerts some measure of control by prescribing standards, by requiring the provision of a limited number of free scholarships and by providing for non-denominational representation on the board of managers.'

I think Duda was right in submitting that it is in the above sense that the right of the minority to establish and administer institutions of their own choice was contemplated by our Constitution makers and it is in that sense that the Supreme Court held that the provisions of Article 30(1) of the Constitution though absolute in terms did not fetter the power of the State to adopt regulative measures in order to bring those educational institutions into a single system. This is exactly what the Agra University has done in the instant case.

13. Before I finish my judgment I have to take notice of a point raised by Sri P N. Duda on behalf of the University that the Agra University not being 'the State as defined under Article 12 of the Constitution any condition put by it for granting affiliation to the petitioner cannot be questioned as violative of any provision of part III of the Constitution and even if a measure adopted by the University infringed upon the fundamental rights of the petitioner this court ought not to interfere in exercise of its jurisdiction under Article 226 of the Constitution to afford any relief to the petitioner. Learned counsel relied upon the case of The University of Madras v. Shantha Bai, AIR 1954 Mad 67 in support of the proposition that a University is not covered by the words 'local or other authority' occurring in Article 12 of the Constitution. I have some difficulty in accepting this contention of the learned counsel. With great respect to the learned judges of the Madras High Court I think the ease cited was not correctly decided. To my mind the University of Agra, which is constituted under an Act passed by the U. P. Legislature and which derives all its powers from the provisions of that Act becomes a statutory body vested with the power to frame statutes and pass ordinances regulating the conduct of persons who came within its purview and is an authority contemplated by Article 12 of the Constitution. The University, in my judgment, does perform functions which may be called Governmental functions as it legislates and binds the conduct of persons and bodies falling within the purview of the Act. The phraseology of Article 12 of the Constitution itself clearly indicates that the Constitution makers were considering authorities other than local authorities also to be included within the definition of 'the State'. The General Clauses Act applies for defining the words used in the Constitution. The Constitution makers would be deemed to be aware of the definition of the words 'local authority' in the General Clauses Act which itself showed that besides a Municipal Committee, a District Board etc., other authorities were also included in that definition which were legally entitled to, or entrusted by the Government with, the control or management of a Municipal or local fund. The difficulty would then arise to construe the words 'local or other authority' occurring in Article 12 of the Constitution on the basis of the doctrine of 'ejusdem generis' as the words 'local authority' themselves brought in other authorities entrusted with the control or management of a Municipal or local fund and the use of the words 'other authority' could be rendered superfluous. I need not further discuss this question as on merits I have held in favour of the University.

14. The result of the above discussion is that this petition has no merits and it is dismissed with the costs which I assess at Rs. 200/-.


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